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By Mimi Nguyen Ly

The Pennsylvania Supreme Court on Tuesday ordered counties to not count any ballots that are in undated or incorrectly dated envelopes in the upcoming Nov. 8 elections, siding with national and state Republican groups in a lawsuit filed just over two weeks ago.

“The Pennsylvania county boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes,” the court said in its order (pdf).

It added, “We hereby DIRECT that the Pennsylvania county boards of elections segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”

Court justices were split 3–3 on whether not counting these ballots would violate 52 US Code section 10101 (a)(2)(B), a voting provision under the Civil Rights Act of 1964.

The provision states that “no person acting under color of law shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”

Chief Justice Debra Todd, and Justices Christine Donohue and David Wecht—all Democrats—would find a violation of federal law if ballots were thrown out based on requiring a date, the court order states. Meanwhile, Justice Kevin Dougherty, a Democrat, and Justices Sallie Updyke Mundy and Kevin Brobson, both Republicans, would not find a violation of federal law. The court is down one member after Chief Justice Max Baer died in September.

The court said that opinions for the decision are “to follow.”

Republicans Sought Expedited Review

The latest court decision comes after the Republican National Committee (RNC), the National Republican Congressional Committee (NRCC), and the Republican Party of Pennsylvania in October joined in filing a lawsuit to block undated mail-in ballots and absentee ballots from being counted, even if they are received on time.

In a petition, the group asked for an expedited review, which requires the court to use its special power to bypass the lower courts in taking up the case. On Oct. 21, the court granted the request, a move that suggested it regards the matter as urgent and important.

Pennsylvania Department of State officials argued that state law between 1945 to 1968 had directed counties to set aside mail-in ballots when the date on the envelope was later than the election day. But in 1968, the state law was changed, resulting in the deletion of a section in the law that required counties to set aside ballots based on the date on the return envelope, the officials noted.

Republicans asked the justices to rule on the language of Pennsylvania’s law, which states that an absentee or mail-in voter “shall … fill out, date and sign the declaration” printed on the outer envelope of the ballot. They asked the court that if it doesn’t order counties to throw out the undated or incorrectly dated ballots, then it should at least order counties to segregate the ballots.

The Pennsylvania Supreme Court on Tuesday dismissed the individual petitioners from the case due to lack of standing, while determining that the RNC, NRCC, and the Pennsylvania GOP have standing.

Prior to the latest legal fight, the 3rd U.S. Circuit Court of Appeals had ruled in May that having dates on the return envelope is not mandatory, and that mail-in ballots without the date had to be counted in a 2021 Pennsylvania judge race.

The ruling was welcomed by Democrats, including the Pennsylvania Department of State under the administration of Gov. Tom Wolf, a Democrat. It immediately adjusted its nonbinding guidance to say that counties should count undated ballots.

But the U.S. Supreme Court in October vacated the decision by the appeals court, and dismissed the case as moot.

Pennsylvania state law requires that voters handwrite a date on the outer envelope when they send in mail ballots. However, the date that’s handwritten on the envelope is not used to verify whether a ballot has been received on time for the election, because the ballots are supposed to be time-stamped when they arrive at county offices.

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